I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

What the Wall Street Journal Missed about False Statements Made to the FBI

The dangers posed by the abusive use of vague, overly-broad, and simply too many federal criminal statutes and regulations have been catching much-belated attention in the past couple of years, resulting in articles in the mainstream press and also legislative hearings in Washington. This attention has been bi-partisan – witness the study done jointly by the conservative Heritage Foundation and the liberal National Association of Criminal Defense Lawyers.(Of course, this problem will not be new to readers of Forbes.com’s “Injustice Department.”)

Among the more hard-hitting exposes of the abuses of power committed under federal statutes and regulation have been those authored over the past year by Wall Street Journal reporters John Emshwiller and Gary Fields. Their front-page series on over-criminalization has featured, among other topics, the massive proliferation of criminal statutes, the effect the explosion of criminal cases has had on civil suits, and, on April 10 of this year, a story on the feds’ use of “false statements” prosecutions to ensnare the seemingly innocent under the infamous law known as “section 1001” (more formally, Title 18, United States code, section 1001).

But last week’s story about section 1001 actually understates the potential for abusive uses of the statute, for it omitswhat is perhaps the most important—and most pernicious—aspect of the feds’ ability to prosecute the unwary for “false statements”: the FBI’s unique ability to construct and define “truth” by the manipulation of something called a “Form 302” report, and thereby to trap almost any unsuspecting witness or targeted defendant. The combination of section 1001 and the manner in which agents produce 302 reports is an aspect of the federal criminal justice system that, whileknown mainly onlyto prosecutors and criminal defense lawyers, directly affects the liberty interests of every American who might come within the sights of the feds.

In their article, Emshwiller and Fields discuss the absurd prosecution of Nancy Black, a marine biologist who was being investigated for allegedly harassing and illegally feeding humpback whales. The prosecution has cost Black over a hundred thousand dollars, and when it was found that she had engaged in no wrongdoing, she still found herself criminallycharged: with lying to investigators, in violation of section 1001,and with illegally altering a piece of evidence (charges she vociferously denies). And there are any number of other examples Emshwiller and Fields could have used to demonstrate the abuse of section 1001.

Consider the prosecution of Martha Stewart, who, it turned out, committed no actual financial crime, including the “insider trading” for which she was initially investigated but never charged (because it is highly doubtful, under the law at the time, that she had in fact engaged in insider trading). Stewart had agreed to be interviewed by federal agents and enforcers, and that was her big mistake. The section 1001 false statement statute is broad enough so that in just about any interview something that you say can be construed as a lie to a federal official. As Harvard Law Professor and criminal defense lawyerAlan Dershowitz said to the Congressional Judiciary Committee in 1998: “there is evidence that false statements are among the most selectively prosecuted of all crimes, and that the criteria for selectivity bears little relationship to the willfulness or frequency of the lies, the certainty of the evidence or any other neutral criteria relating to the elements of perjury or other false statement crimes.”

But one rather important reason that the FBI might credibly be able to prosecute Ms. Black and any other unsuspecting individualis that the feds have a tool in their arsenal that, when added to the broadness and vagueness of section 1001, creates a truly powerful means of entrapment: the form 302 report. As we discussed in this space—and as Silverglate describes in even greater detail on a video produced by the ACLU of Massachusetts—section 1001 is made much more powerful by the FBI’s idiosyncratic and peculiar means of documenting oral interviews.

As we wrote in July of last year, the FBI has a peculiar policy of intentionallynot recording its interrogations. Instead,

the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent—in the traditional two-agent FBI interviewing team—conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formalwritten FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said.

The importance and implications of the FBI’s method of conducting interviews cannot be overstated. As there is no mechanical or electronic recording of the interrogation sessions, the 302 reports—abbreviated (and often highly selective) accountsby FBI agents of what are sometimes long conversations—become the only piece of “evidence” concerning the statements made by a defendant or witness to a federal agent. When it comes time to provide testimony, the prospective witness may be shown the Form 302 report containing the government’s chosen rendition of the interrogation: if the witness disagrees with what is contained within the Form 302 report and testifies contrary to the report, then she may face a prosecution for violating section 1001. After all, as the form 302 report is the only documentary (even if not verbatim) evidence of what was stated to the FBI, any disagreement voiced by the witness with respect to some statement attributed to her in the report becomes, arguably, a “false statement.” Either the witness can go along with the government’s version of the truth, or face a prosecution: it’s her choice. And this system is made particularly pernicious by the FBI’s formal, written policy against tape-recording, or allowing the interviewee to record, these witness interviews. In an age of ubiquitous recording devices – think, cellphones – a major federal law enforcement agency deliberately relies instead on the fallible notes and selectivememories of its agents.

And so while an important piece of journalism, Emshwiller and Fields have left out what is perhaps the most damningpart of the story: the problem is not merely that the government uses a broadly worded law, it is that it employsa means of defining truth that directly feeds into the expansive and abusive useof that already broadly and vaguelyworded law. The tools of coercion, extortion, and the manipulation oftruth are not the sole property of criminal organizations: the DOJ has plenty of experience utilizing them as well.

This article was co-authored by Daniel R. Schwartz. Follow him on twitter @DanielRSchwartz, and Silverglate on Twitter @3felonies

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